Orta v. USA
MEMORANDUM ORDER adopting 2 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Thad Heartfield on 5/31/17. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CHARLES GREGORY ORTA
UNITED STATES OF AMERICA
CIVIL ACTION NO. 1:17-CV-125
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant Charles Gregory Orta, a federal prisoner, proceeding pro se, filed this motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
The court ordered that this matter be referred to the Honorable Keith F. Giblin, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of
this court. The magistrate judge has submitted a Report and Recommendation of United States
Magistrate Judge. The magistrate judge recommends dismissing the motion without prejudice.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. Although movant
filed objections to the report and recommendation, he does not object to the dismissal of this action.
Instead, he requests that his initial pleading be construed as a motion to amend his pending motion
to vacate sentence.
In this case, the movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues
a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting
a certificate of appealability, like that for granting a certificate of probable cause to appeal under
prior law, requires the movant to make a substantial showing of the denial of a federal constitutional
right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328
(5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial
showing, the movant need not establish that he should prevail on the merits. Rather, he must
demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve
the issues in a different manner, or that the questions presented are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. If the motion was denied on procedural grounds,
the movant must show that jurists of reason would find it debatable: (1) whether the motion raises
a valid claim of the denial of a constitutional right, and (2) whether the district court was correct in
its procedural ruling. Id. at 484; Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant
a certificate of appealability is resolved in favor of the movant, and the severity of the penalty may
be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.
Here, the movant has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason, or that the procedural ruling is incorrect. In addition, the questions
presented are not worthy of encouragement to proceed further. The movant has failed to make a
sufficient showing to merit the issuance of a certification of appealability. Accordingly, a certificate
of appealability will not be issued.
Accordingly, the findings of fact and conclusions of law of the magistrate judge are correct,
and the report of the magistrate judge (document no. 2) is ADOPTED. The Clerk of Court is
directed to file the initial pleading (document no. 1) as a motion for leave to file a supplemental
pleading in civil action number 1:16-CV-454. A final judgment will be entered in this case in
accordance with the magistrate judge’s recommendation. A certificate of appealability will not be
SIGNED this the 31 day of May, 2017.
United States District Judge
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